In yesterday's edition of the Government's daily coronavirus briefing, Robert Jenrick MP (Secretary of State for Housing, Communities and Local Government) relayed tales of how some local authorities have been able to continue essential fire safety work in the COVID-19 era in order to address defective and dangerous cladding in their areas. He then went on to say:
"I would urge any building owner or contractor...as soon as practicable, where it's safe, to begin work once again."
If Mr Jenrick envisioned this statement as a call to arms for the industry to remobilise in a flurry of activity, it is likely that he will be disappointed.
The construction industry has been afforded the freedom to continue work where it is safe to do so since the lockdown was implemented. It is a freedom that the sector has done its best to exploit where it can, with significant works continuing on a variety of essential and less essential projects; lest we forget, it was the construction industry that bore the brunt of criticism early in the lockdown for causing overcrowding on underground trains and stations. A number of leading construction companies and housebuilders have continued or recommenced work where they are able to do so, and a number of high profile projects (including Crossrail) are apparently progressing well. Build UK has reported that its members, who comprise some of the largest contractors operating in the UK, are now working on 73% of sites (up from 69% last week).
However, the issues for the industry facing the prospect of full remobilisation to all sites have not changed:
- Staff and workers must be confident in their safety at all times. This extends not only to safety on site, but also safety travelling to and from work.
- All employers in the construction industry need to be confident that the steps that they are taking to protect the safety of their workforce are appropriate, and that they are not at risk of claims or criticism for endangering their staff.
- Parties to construction contracts need to have clarity as to what is or is not going to be achievable in terms of progress in the short to medium term, so they can plan appropriately.
- Supply lines for local and internationally sourced resources and materials will need to open.
- The industry as a whole will need to have access to considerable supplies of PPE – and must have access to those resources in such way that does not place the industry in competition with the NHS and key workers. This problem is made all the more acute by the fact that many companies have donated their PPE stocks to the NHS.
Against this backdrop the government needs to learn the lessons of how it implemented the lockdown. In issuing "guidelines" alongside mandatory rules (namely the Coronavirus Act 2020), the Government created significant ambiguity as to whether or not those guidelines were themselves mandatory or merely advisory. This has had the unfortunate consequence that some construction companies that followed the guidelines and took prudent steps to protect their workforces may have inadvertently created disputes and exposed themselves to claims, delays and unrecoverable costs for going above and beyond their "mandatory" obligations.
Bearing that in mind, as it remobilises, the industry does not need encouragement from the Government. Rather, it needs confidence and clarity that each step taken to get back to "normal" is, at the time that it is taken, the correct step to take and one that does not risk health and safety breaches, claims or disputes.
The Government can provide that confidence and clarity, but it will not do so by issuing "guidelines" of unknown legal force, or by providing vague or ambiguous information.
Originally published Duane Morris, May 2020
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